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Guerrero v. Vilsack

United States District Court, D. Columbia

September 30, 2015

THOMAS VILSACK, Secretary, United States Department of Agriculture, Defendant

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          SINCERI GUERRERO, Plaintiff, Pro se, Raleigh, NC.

         For SINCERI GUERRERO, Plaintiff: Sinceri Keoka Guerrero, LEAD ATTORNEY, Raleigh, NC.

         For THOMAS J. VILSACK, Secretary, United States Department of Agriculture, Office of General Counsel, Defendant: Damon William Taaffe, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

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         ROSEMARY M. COLLYER, United States District Judge.

         Sinceri Guerrero has worked for the U.S. Department of Agriculture since December 2010. Proceeding pro se, she sues the Secretary of the Agriculture, Tom Vilsack, in his official capacity. Ms. Guerrero alleges that she has suffered continuous harassment, intentional discrimination, and retaliation due to her age (52) and race (Hispanic/African American) and that she has been underpaid due to such discrimination. The Secretary moves to dismiss her case in part, arguing that Ms. Guerrero has failed to exhaust some of her claims at USDA before taking them to court. As to others, the Secretary argues that they were not timely brought or do not state a claim for relief that is plausible.

         The Court agrees that some of Ms. Guerrero's claims are untimely, but also questions whether USDA fulfilled its obligations to investigate adequately Ms. Guerrero's charges of discrimination--perhaps because she accused the Office of Civil Rights, which is the office that investigates such complaints. And contrary to the Secretary's position, several of Ms. Guerrero's allegations state a plausible claim for relief. Because most of the allegations in the Amended Complaint warrant discovery, the Secretary's motion will be granted only in part.

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         I. FACTS

         All facts alleged in Ms. Guerrero's Amended Complaint, Dkt. 2 (Am. Compl.) are taken as true in this procedural posture. Baird v. Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015) (citing Brown v. Sessoms, 774 F.3d 1016, 1020, 413 U.S.App.D.C. 328 (D.C. Cir. 2014)). A pro se complaint is " to be liberally construed" and " however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).[1]

         The Court may also review materials referenced in the Complaint, " particularly where, as here, the plaintiff has presented the document to the Court in support of its claims." Am. Council of Life Insurers v. D.C. Health Benefit Exch. Auth., 73 F.Supp.3d 65, 104 n.21 (D.D.C. 2014) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059, 378 U.S.App.D.C. 355 (D.C. Cir. 2007)); see also Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C. 1999) (concluding that a court could properly consider, on motion to dismiss, " various letters and materials produced in the course of plaintiff's discharge proceedings" that were " referred to in the complaint and [were] central to plaintiff's claims" ) aff'd, 38 Fed.Appx. 4 (D.C. Cir. 2002).

         A. Ms. Guerrero's Initial Federal Employment

         Sinceri Guerrero's federal employment began in December 2010, when she was hired under the Business Management Leadership Program into the USDA's Food Safety and Inspection Service (FSIS). Her series and grade were Management Analyst 0343 and AP-3, respectively. AP-3 was equivalent to a GS-11, Step 5 pay grade. The leadership program was part of a broader Federal Career Internship Program (FCIP), under which successful participants would be converted--after a two-year trial period and a third year of service--into Management Analysts at the AP-4 pay grade.

         That was not to be, however, as the FCIP was abolished by Executive Order effective March 1, 2011. See Exec. Order No. 13,562 (Dec. 27, 2010). The Office of Personnel Management directed agencies on how to handle their FCIP interns: " [A]ll agencies with FCIP incumbents must convert them to career-conditional or career positions in the competitive service." OPM, Executive Order 13562 -- Recruiting and Hiring Students and Recent Graduates (Jan. 5, 2011). More specifically, OPM directed that " [i]ncumbents who have completed less than one year of continuous Federal Service as of March 1, 2011 will continue to be in a probationary period, even after their conversion to competitive service, until they reach the one year service mark. . . ." Id. Ms. Guerrero completed her one year of probationary service in December 2011 and received a Standard Form (SF) 50 on January 29, 2012, reflecting her new status as a regular competitive employee and a Management Analyst 0343, AP-4.

         Ms. Guerrero spent most of her probationary year assigned to the FSIS's Office of Civil Rights.[2] Ms. Guerrero claims to

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have suffered most of her discrimination at the hands of that office.

         B. The Alleged Discrimination

         The alleged discrimination began in January 2011, when Ms. Guerrero informed her Training Officer, Carmen Rottenberg, that the FCIP had been abolished and that Ms. Guerrero was therefore a probationary employee. Ms. Rottenberg replied that she did not know Ms. Guerrero's status and would continue to treat her as an intern. As indicated below, references to Ms. Guerrero as an intern, rather than a regular employee, continued to plague her FSIS career.

         Farook Sait became the Director of the Office of Civil Rights in March 2011 and promoted Ms. Rottenberg to serve as his Deputy Director. The Complaint alleges that " Mr. Sait was a known civil rights violator [and] subject to a settlement agreement that prevented him from supervising minority women." Am. Compl. ¶ 13. Ms. Guerrero complained about Mr. Sait's appointment and asked to speak to FSIS Administrator Alfred Almanza. She was told that any communication with Director Almanza would have to go through Ms. Rottenberg.

         Sometime in 2011, Ms. Guerrero suggested to Ms. Rottenberg that it was " excessively expensive" to spend $500,000 on a Civil Rights Training seminar at the Ritz Carlton in Crystal City, VA. This suggestion was unwelcome to Ms. Rottenberg, who " removed Plaintiff's work assignments and gave them to Amanda Krot, a younger white employee with less formal education" than Ms. Guerrero but who was also a Management Analyst 0343 AP-4. Id. ¶ 14. At other, unspecified times in 2011, Mr. Sait and Ms. Rottenberg spoke openly of Ms. Guerrero as " merely an old intern" and required her to take inventory of a filthy storage room in Beltsville, MD. Id. ¶ 15. Ms. Guerrero complained about all of this to her second-line supervisor, Peter Bridgeman, who told her that " she would be well served if she remained silent about her poor treatment." Id. ¶ 16.

         In June 2011, Ms. Guerrero left the Office of Civil Rights to work in the FSIS Office of Management. She left that job in October 2011 to work in the FSIS Workers Compensation, Safety and Health Division.

         In January 2012, Ms. Guerrero was asked to work on the Administrative Solutions Project Blueprint for Stronger Service, located in the Office of the Secretary of Agriculture. She was still classified as a Management Analyst 0343 AP-4 but worked alongside (and filled the same roles as) younger, white coworkers who were paid at a higher grade. When Ms. Guerrero asked for a commensurate increase to a GS-13 or GS-14 pay grade, she was " told that she was an intern and ineligible." Am. Compl. ¶ 17. She alleges further that Ms. Rottenberg conspired with others to keep Ms. Guerrero from obtaining a permanent position in the Secretary's Office, and that she was made to sign a form never used for comparable employees, on which Ms. Guerrero had to predict what she would learn on the assignment.

         In November 2012, Ms. Guerrero was reassigned by Mses. Rottenberg and Myers to FSIS's Labor and Employee Relations Division (LERD).[3] Despite Ms. Geurrero's best efforts to remain where she was, she was told that she was needed in LERD. Ms. Guerrero alleges that that LERD was " a low performing unit with high turnover and a history of employee dissatisfaction, including workplace violence."

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Id. ¶ 18. During her first few months in the unit, seven supervisors and other staff left. She also alleges procedural defects in her reassignment, viz. that she never received a " letter of notification" or " a meeting with Human Resources explaining rights and resources." Id. No adjustment to her pay was made. When she arrived, moreover, " no one knew what her responsibilities were nor did anyone provide her with a job description." Id. ¶ 19.[4] After much confusion, she was informed that she would perform labor-relations work as a GS-13.

         Ms. Guerrero alleges that she then suffered harassment and discrimination throughout 2013: she was (1) not placed on the " Agency call list" to be informed of necessary information; (2) denied free OPM training for her new position; (3) questioned why she needed to take time off to vote; (4) questioned why she needed sick leave to obtain a requested doctor's note; and (5) not given access to necessary office equipment such as a copier, scanner, and shared drives. These circumstances imposed great stress and caused Ms. Guerrero " anxiety and severe crying episodes." Id.

         C. Applications to Become a Litigation Specialist

         In June 2014, Ms. Guerrero applied for a Litigation Specialist position at a GS-14 grade. She was not referred as a qualified candidate, however, because she did not have a signed evaluation due to the fact that she had no assigned supervisor to complete an evaluation for fiscal year 2013. Ms. Guerrero wrote to the Deputy Administrator in August 2014 to complain, and was then granted an interview, but the job went to someone already considered in the normal course. Two subsequent applications for GS-14 Litigation Specialist positions were also unsuccessful.

         When she applied yet again to become a GS-14 Litigation Specialist, Ms. Guerrero was notified sometime after October 5, 2014 that she would have to submit a writing sample with her application. She immediately withdrew her application, in the belief that the writing-sample requirement was a pretext because she was " already providing written documents to the Litigation Unit." Am. Compl. ¶ 20. Ms. Guerrero therefore thought that " there was no need to supply more writing samples." Id. She did not get the job.

         D. Pay Disparity

         Ms. Guerrero alleges that she " did not receive a promotion or equal pay in 2012 while working on the Administrative Solutions Project with two young white employees even though Plaintiff performed the same work." Id. ¶ 28. She adds that her work at that time was " acknowledged" as superior by her receipt of the Secretary's Honor Award. By comparison, Ms. Guerrero avers that Jaime Edmuds nee Wadzink (a 36 year old white man) and Chris Nelson (a 35 year old white man) were " both paid higher and received promotions as a result of the work performed on the Administrative Solutions Project." Id.

         E. Procedural History

         Ms. Guerrero first contacted an Equal Employment Opportunity (EEO) counselor on October 4, 2012, after she learned that she would be reassigned to LERD from her detail in the Office of the Secretary. EEO Counselor's Report [Dkt. 6-3] (First EEO Compl.) at 2. Ms. Guerrero was interviewed by the EEO Counselor on October 11, 2012. Id. at 1. The EEO complaint

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and interview narrative show that Ms. Guerrero alleged a single discriminatory act: on October 4, 2012, she was reassigned from the Office of the Secretary to LERD. Id. at 2, 3. The reassignment would result, in Ms. Guerrero's view, " in a series change from a Management Analyst (0343) to a Litigation Specialist (0201), a Human Resource series." Id. at 2, 3. Ms. Guerrero " stated [that] she feels the 0201 series is used to marginalize people of color." Id. at 3. She asked to remain a Management Analyst with the Administrative Solutions Project until December 2012, or " if forced" to leave that project, to be a Management Analyst in the Office of Public Affairs or LERD. Id. at 2.

         Ms. Guerrero filed a formal administrative complaint on November 13, 2012. Complaint of Employment Discrimination [Dkt. 6-1] (First Admin. Compl.) at 1. She cited the following issues: assignment of duties; reassignment; harassment; and terms/conditions of employment. First Admin. Compl. at 1. Under the heading " What Initiated Thi[s] Discrimination Complaint," she wrote: " On October 4, 2012 I was notified by Peter Bridgeman . . . that I had to terminate my detail and return to FSIS OM as there was a critical need for my position in my originating office." Id. at 3. Far from her reassignment being the only alleged discriminatory act, however, the First Administrative Complaint added that her reassignment was " the final act in a long string of continual harassment and symptomatic of blatant institutional racism pervasive at USDA." Id. Over the course of a seven-page letter attached to her First Administrative Complaint, Ms. Guerrero alleged discriminatory acts that had begun in January 2011. First Admin. Compl. at 6 (" In January 2011 Farook Sait . . . asked me if I was a Negro. He stated people often confused him with a Negro because his skin color like mine was dark, he said." ). USDA accepted only one issue for investigation: the October 4, 2012 reassignment for which she had received prior EEO counseling. USDA Letter [Dkt. 6-4] (First Acceptance) at 1. Near the end of the First Acceptance letter, USDA advised Ms. Guerrero: " If you do not agree with the defined claim, you must provide us with sufficient reasons, in writing, within 7 calendar days of receipt of this letter." First Acceptance at 2. Ms. Guerrero challenged that letter two days after she received it:

[A]lthough I agree with the basic summary written in the USDA FSIS Civil Rights Acceptance letter that I received May 13, 2013, I want to ensure the previous persistent discrimination and harassment that I described in my November 15, 2012 EEO complaint summary are acknowledged. The basic statement as written and provided by USDA FSIS Civil Rights does not acknowledge the ongoing nature or the severity or seriousness of the previous incidents that led up to the initiating incident, the reassignment. I am writing this to prevent fragmentation.

Opp'n, Ex. C [Dkt. 9-2 at 23] (May 15, 2013 Letter from Ms. Guerrero to EEOC).[5]

         Ms. Guerrero contacted an EEO counselor again on January 24, 2014. Complaint of Employment Discrimination [Dkt. 6-6] (Second EEO Compl.) at 1. She complained of reprisal, in the form of a " fully successful" rating on her 2013 performance appraisal, and unequal pay because " when she began working as a Labor Relations Specialist" on November 5, 2012, she was not " compensated at a GS-13 level

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though her male coworkers [were]." Id. at 2. Another EEO interview and counseling session were conducted and another report written by the EEO counselor. Id. at 3-4.

         Ms. Guerrero filed a Second Administrative Complaint on March 13, 2014, which largely mirrored her Second EEO Complaint. Complaint of Employment Discrimination [Dkt. 6-5] (Second Admin. Compl.) at 1. She again alleged retaliation for her October 2012 complaint in the " fully successful" rating on Ms. Guerrero's 2013 Performance Appraisal, which was prepared without giving her an opportunity to submit her accomplishments or meet with her reviewing supervisors. The Second Administrative Complaint also included an alleged violation of the Equal Pay Act because she should have been paid as a GS-13 when she was assigned to LERD in November 2012. Ms. Guerrero sought back pay.

         Based on the Second Administrative Complaint, USDA accepted three issues for investigation on June 16, 2014: (1) under-compensation since November 5, 2012; (2) fully successful rating on Ms. Guerrero's 2013 Performance Appraisal; and (3) " acts of harassment" on " unspecified dates . . . in that a management official consistently referred to her as an 'intern.'" USDA Letter [Dkt. 6-7] (Second Acceptance) at 1. As before, the Second Acceptance advised: " If you do not agree with the defined claims, you must provide us with sufficient reasons, in writing, within 7 calendar days or receipt of this letter." Second Acceptance at 2. Ms. Guerrero wrote no such letter.

         F. This Lawsuit

         Representing herself, Ms. Guerrero filed suit in this Court on December 12, 2014 and amended her complaint six days later. See Compl. [Dkt. 1]; Am. Compl. [Dkt. 2]. She alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and seeks declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 151. Specifically, she relies on 42 U.S.C. § 2000e-16, which prohibits " any discrimination based on race, color, religion, sex, or national origin" in personnel decisions made by the federal government, as defined. At the time the Amended Complaint was filed, Ms. Guerrero was a 52-year-old Hispanic/African American female. Ms. Guerrero also claims discrimination based on her age, which is prohibited by the Age Discrimination in Employment Act, 29 U.S.C. § 633a (ADEA), although the Amended Complaint cites only Title VII for this claim.

         Count I complains of disparate treatment because similarly-situated employees of other races or ethnicities (under Title VII) and younger in age (under the ADEA) were treated better than she. Count I also contains an allegation of disparate pay.

         Count II alleges intentional discrimination and the knowing failure of USDA managers to provide her with any remedy for discriminatory actions. It contains further allegations of disparate treatment and complains about Ms. Guerrero's unsuccessful attempts to obtain a job as a GS-14 Litigation Specialist.

         Count III alleges a violation of the Lilly Ledbetter Fair Pay Act of 2009, which amended Section 706(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) and the ADEA, 29 U.S.C. § 626(d), as well as other laws.[6] The Lilly Ledbetter Act

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changed what it means for a discriminatory compensation practice to " occur." As amended, the law now provides that a discriminatory compensation practice occurs " [1] when a discriminatory compensation decision or other practice is adopted, [2] when an individual becomes subject to a discriminatory compensation decision or other practice, or [3] when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice." 42 U.S.C. § 2000e-5(e)(3)(A) (emphasis added); 26 U.S.C. § 626(d)(3) (emphasis added). The amendment was made applicable to discrimination by federal government agencies. 42 U.S.C. § 2000e-16(f).

         Count III also complains the Ms. Guerrero did not receive a performance bonus in 2013; that she was denied the opportunity to take leadership courses offered to other Management Analysts; and that Mses. Myers and Rottenberg intentionally seated Jackie Shamblin across from her to intimidate her. Mr. Shamblin was the former Director of Human Resources who lost his position after he threatened to use a taser on his staff. Am. Compl. ¶ 38.

         The Secretary moved to dismiss, or alternatively for summary judgment, on February 6, 2015. Mot. to Dismiss [Dkt. 6] (Mot.). Ms. Guerrero filed an opposition, Dkt. 9 (Opp'n). The Secretary filed a reply, Dkt. 10 (Reply), and the motion is now ripe for resolution.[7]


         The only statute cited in Ms. Guerrero's Amended Complaint is Title VII.[8] It is clear, however, that her allegations implicate several others. And because Ms. Guerrero repeatedly, and broadly, alleges " discrimination" and " retaliation," it is necessary to set forth the applicable standards under each of the relevant statutes.

         A. Discrimination under Title VII

         Title VII of the Civil Rights Act of 1964, as amended by Equal Employment Opportunity Act of 1972, prohibits status-based discrimination in the federal workplace.[9] It generally prohibits a federal employer from making any " personnel decision[]" based on an employee's race, color, sex, religion or nationality. See 42 U.S.C. § 2000e-16; Baird, 792 F.3d at 168. The " two essential elements of a discrimination claim" under Title VII are " that [1] the plaintiff suffered an adverse employment action [2] because of the plaintiff's race, color, religion, ...

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